Status of Wood Bison Suits Against USFWS

Written By John J. Jackson III, Conservation Force Chairman & President

(posted August 2010)

The second stage of Conservation Force’s wood bison suit has been dismissed by the Federal Court as anticipated. The Federal District Court Judge in the District of Columbia granted the Government’s motion to dismiss on the basis that the permits have now been processed as the suit demanded and a new notice of intent to sue had to be sent to the USF&WS for its failure to make timely 12-month and 24-month downlisting determinations. The need to file a second notice of intent to sue after the USF&WS made its positive 90-day finding is considered to be a jurisdictional requirement, and the fact the permits have now been processed, though denied, moots the claims to compel the processing of the permits.

The court held that “[o]f course, nothing prevents plaintiffs, after ensuring that they have provided proper statutory notice (notice of intent to sue) …from filing an additional suit to compel the 12-month finding.” We anticipated this, so Conservation Force sent a second notice of suit shortly after the Service made the positive 90-day finding because the mandatory 12-month period had also already passed. We had already prepared a second suit to compel the past-due 12-month finding that is a mandatory deadline set by Congress. We filed that suit in June.

The USF&WS has represented that it will make its 12-month finding by September 15, 2010, in which case that part of the second suit we have filed will be satisfied and also be subject to dismissal until we send a third notice of intent to sue. So much time has passed that the USF&WS can’t be in compliance at any stage, but the court is holding us to the jurisdictional requirement that a notice of intent to sue has to be sent and another, third suit will have to be filed then.

The failure-to-process-permit-applications part of the case was dismissed because they have been processed, despite that permits had not been processed in 10 years! The new suit (the second) that Conservation Force has filed challenges those denials under the Endangered Species Act and the Administrative Procedure Act.

Conservation Force could have settled the entire case had it been willing to consent to a three- to four-year downlisting process and walked away from the permits that we expected to be denied, as they subsequently were. Instead we sent a second notice of intent to sue and have filed a new suit to expedite the downlisting that is late and to overturn the Agency’s denial of the permit applications that were pending up to 10 years. Our position is that there is an obligation to expedite the downlisting of foreign species that are beyond the jurisdiction and management benefit reach of the USF&WS, particularly when the listing is obstructing the foreign program and the particular population status no longer warrants being listed. It is also our position that the delay, and now the denials of the permits, conflict with the responsible foreign country’s programs and the recovery of the species. Canada has said outright in its National Recovery Plan that the ESA listing is obstructing recovery plans.

Conservation Force and its partners have achieved some small measure of success (positive 90-day finding, promises of a 12-month finding by September and permit processing). Now we go into stage two. We will no longer wait 10 years. The steps we are taking can be compared to the polar bear suits filed by the Center for Biological Diversity. The plaintiffs in the initial California polar bear case filed separate notices of intent to sue for the 90-day, 12-month and 24-month deadlines on the matching date. On top of that, they persuaded the Federal Judge to override the APA and ESA notice period protection before the listing was made effective. We expect no less under the law for the interest of foreign species and hunters.

The entitlement to payment of legal fees and the amount of attorney fees is the only remaining issue in the first (90-day determination deadline) suit that has been dismissed. It is a much more serious issue than foreseen. Although the government had been willing to pay attorney fees had we agreed to settlement, we could not agree to their settlement terms, for they wanted us to agree to an illegal four-year downlisting process. The downlisting of Canada’s wood bison from “endangered” is too simple and uncontroversial to take twice the nondiscretionary 24-month period Congress has mandated. Moreover, the USF&WS knows the conservation importance of the downlisting and had promised to downlist the bison on its own initiative many years before the Wood Bison Recovery Team gave up and took the initiative by filing its own petition to downlist the wood bison. The broken promises and delays have been inexcusable and outrageous.

The recovery of legal fees has become a serious concern for another reason. The Justice Department that represents the USF&WS in litigation has filed an opposition to the request for attorney fees. They are arguing that attorney fees are not recoverable under the “Citizen Suit” section of the ESA. Although that section allows the court to award reasonable attorney fees that it deems “appropriate,” that section, they argue, does not apply to complaints challenging delays in import permit application processing and challenging the legality of the denials of permits. They argue that the Citizen Suit section only applies to listing and downlisting determination issues, not to discretionary regulatory matters such as import permitting of species that are listed.

A decision that fees are not recoverable can seriously affect Conservation Force’s litigation division. We have more than 21 attorneys across the nation that have joined forces with Conservation Force who are expending thousands of hours to the cause with the expectation to be paid on a contingency basis, i.e. they are expecting a fee award from the court if we advance the underlying cause. If the Citizen Suit provision does not apply, then attorney fees will be lower and will only be awarded when the defendant’s conduct takes place after, not before, an actual order or judgment. That will seldom happen because the government normally takes action after being sued but before an actual judgment is rendered. For example, in the wood bison, markhor, Mozambique elephant and Zambia elephant cases the USF&WS has completed the processing of the permit applications that had been languishing for many years before suit was filed and have smartly or mischievously processed the applications before the court issued an order or judgment.

This is just one of the many battles we are fighting to protect hunters’ interests. No doubt a loss on this point would handicap our efforts to establish timely processing of permits. It may also limit or eliminate recovery of legal fees in all the trophy seizure court cases. Then again, reasonable fees may be recoverable under 42 U.S.C. 1983, a civil rights law, if and when a court finds there has been a violation of a permit applicant’s US Constitutional rights such as the denial of procedural “due process.”